# Mohd. Ishaq & Ors. (In Jail) v. The State of U.P

- **Citation:** Criminal Appeal No. 1852 of 1991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-13
- **Case number:** Criminal Appeal No. 1852 of 1991
- **Bench:** Arvind Kumar Mishra, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ishaq-ors-in-jail-v-the-state-of-u-p-46448
- **Pages:** 8

## Headnote

Criminal law- Indian Penal Code -Sections
304B, 201, 498A - Dowry Prohibition
3-5 All. Mohd. Ishaq & Ors. Vs. The State of U.P.
615
Act,1961- Section 3/4 - Appeal against
conviction.

Held :- Benefit of doubt- Where witnesses
and circumstances considered together raised
strongly suspicion about the occurrence and
involvement of accused. (Para 33)

Appeal allowed. (E-2)

## Text

614 INDIAN LAW REPORTS ALLAHABAD SERIES
accuseds set up under section 313 Cr.P.C
cannot be considered, is not in accordance
with requirement of law. The Apex Court in
the case of Reena Hazarika (Supra) has
clearly held that the statement of the
accuseds under Section 313 Cr.P.C is not a
substantive evidence but whether the
defence setup therein is acceptable or not
has to be considered. Whether the defense
is acceptable or not or whether it is
compatible or incompatible with the
evidence available is an entirely different
matter. If there is no consideration at all of
the defense taking under Section 313
Cr.P.C., in the given facts of the case, the
conviction stands vitiated.

28. In the present case the defence set
up was that the injured fell on utensils of
halwai in the night and suffered one injury
of fracture on his left temporal bone
therefrom. No internal damage in the brain
of the injured was found by the doctor. It
was a simple fracture on parietal bone. The
utensils utilized by halwai while preparing
food for large number of persons are
mostly of heavy metals and have different
type of edges and by abruptly falling on
such utensils injury on head can occur. It is
not absolutely impossible. Due to sudden
fall the injury suffered by P.W-1 on head
can be suffered by such fall on heavy
utensils of halwai. From the statements of
P.W-1 it is clear that he has avoided
replying to the question from where his
family brings the water. The public tap has
been admitted to be situated on the gate of
the house of the accuseds. It is not
improbable that on the public tap infront of
the house of the accuseds the utensils were
being washed or kept for being washed and
the injured stumbled against them and fell
on them resulting in injury over his head.
He has admitted that the accuseds were
jealous of his family and accuseds have
said that injureds was jealous of them and
therefore there is possibility of false
implication of appellants in this case by
P.W-1. The trial court has not considered
this aspect of defense.

29. After considering the totality of
fact and circumstances on record this court
find that at the most offence under Section
308 IPC was made out against the accused,
Bharat,
but
on
account
of
nonconsideration of the defense of the accused
under Section 313 Cr.P.C., the same can
also not been sustained.

30. The judgment and order of this
trial court is set aside. The office is directed
to send back record of the court below
along with copy of this judgment and order
within three weeks.

31. The criminal appeal is allowed.
----------

(2020)03-05ILR A614
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 1852 of 1991

Mohd. Ishaq & Ors. ...Appellants (In Jail)
Versus
The State of U.P. ...Respondent

Counsel for the Appellants:
Sri Satish Trivedi, Sri Ajay Kumar Pandey

Counsel for the Respondent:
A.G.A.

Criminal law- Indian Penal Code -Sections
304B, 201, 498A - Dowry Prohibition
3-5 All. Mohd. Ishaq & Ors. Vs. The State of U.P.
615
Act,1961- Section 3/4 - Appeal against
conviction.

Held :- Benefit of doubt- Where witnesses
and circumstances considered together raised
strongly suspicion about the occurrence and
involvement of accused. (Para 33)

Appeal allowed. (E-2)

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.
&
 Hon'ble Gautam Chowdhary, J.)

1. Sri Satish Trivedi, learned Senior
Advocate assisted by Sri Ajay Kumar
Pandey, learned counsel for the appellants
is present.

2. By way of instant criminal appeal,
challenge has been made to the validity and
sustainability of the judgment and order of
conviction dated 24.09.1991 passed by
Special Judge, Moradabad, in Session Trial
No.411 of 1987, State of U.P. Vs. Mohd.
Ishaq and others, arising out of Case Crime
No.82 of 1987, under Sections 304B, 201,
498A I.P.C. and Section 3/4 of Dowry
Prohibition Act, Police Station- Behjoi,
District- Moradabad, whereby the surviving
appellant nos.2 and 3 has been sentenced to
undergo rigorous imprisonment for life
under Section 304B I.P.C., five years
rigorous imprisonment under Section 201
I.P.C., two years rigorous imprisonment
under Section 498A I.P.C. and two years
rigorous imprisonment under Section 3/4
Dowry Prohibition Act. All the sentences
were directed to run concurrently.

3. Heard Sri Ajay Kumar Pandey,
learned counsel for the surviving appellant
nos.2 and 3 Mohd. Mushtaq and Mohd.
Asghar, Sri Krishna Pahal, learned A.A.G.
assisted by Sri Om Narain Tripathi, learned
A.G.A. for the State and perused the record
of this appeal.

4. Relevant facts of this appeal, as
gathered from record, appear to be that Haji
Mian Jan, informant PW-1 lodged the
written report at Police Station Behjoi,
District Moradabad (now District Sambhal)
against the present appellants and his
family
members
regarding
fact
that
Khurshida
Begum,
daughter
of
the
informant was married to Mohd. Ishaq
some time ago but she was thrown out from
her in-laws' house, therefore, she filed a
case under Section 125 Cr.P.C. before the
court below wherein maintenance to the
tune of Rs.150/- was granted to her against
which a revision was filed by Mohd. Ishaq
before the Sessions Judge, Moradabad. It
so happened, in revision a compromise
took place that the husband of the deceased
promised that he will keep his wife with
peace and dignity in future. The Sessions
Judge allowed to take his wife back to his
home on 20.5.1985. It so happened that on
15.02.1986, the informant received a letter
whereby fact of cruelty both mentally and
physically being perpetrated upon the
deceased was disclosed then the informant's
son along with other relatives arrived at the
house of the in-laws of his daughter on
17.02.1986 where they were badly treated
and returned. Later on, the informant also
visited the house of the in-laws of his
daughter and he too was maltreated and
returned. Thereafter, report was made to
various higher authorities of the police,
details whereof are made in the first
information report itself. As the first
information report proceeds further, it
indicates that one Abdul Salam @ Sukha
master, a neighbour of the informant came
to him and told around at 8:00 a.m. on
616 INDIAN LAW REPORTS ALLAHABAD SERIES
25.03.1987 that the informant's daughter
expired on 15.03.1987 and this death has
been caused on account of non-fulfillment
of
dowry
demand
and
consequent
perpetration of cruelty and in order to cause
disappearance of evidence, she was buried.
Request was made for lodging the report
and taking appropriate action. The written
report is Ext. Ka-1.

5. Record further reveals that contents
of the written information were taken down
in the concerned Check FIR at Case Crime
No.82 of 1987 under Sections 302, 201,
498A I.P.C. and 3/4 Dowry Prohibition
Act,
Police
Station
Behjoi,
District
Moradabad, on 26.03.1987 at 09:35 p.m.
Check FIR is Ext. Ka-11.

6. On the basis of entries so made in
the check F.I.R., a case was registered
against the appellants in the relevant G.D.
at the aforesaid Case Crime Number at
Police Station Behjoi, under aforesaid
Sections of I.P.C. and Dowry Prohibition
Act against the appellant. General diary
copy is on record.

7. After registration of the case, the
investigation ensued and the same was
entrusted to Circle Officer concerned who
pursuant to the lodging of the first
information report proceeded to the spot
and facilitated for preparation of the
inquest of the deceased. The inquest of the
deceased Khurshida Begum was held by
the
Circle
Officer
concerned.
It
commenced at 11:00 a.m. and completed at
01:00 p.m. on 28.03.1987. Inquest report is
Ext. Ka-14.

8. In the opinion of the inquest witnesses
and the Investigating Officer concerned, it was
suggested that post mortem of the dead body of
Khurshida Begum be ensured in order to
ascertain real cause of death. Therefore,
relevant papers were prepared such as letter to
CMO by R.I. Ext. Ka-13, photonash Ext. Ka15, letter to R.I. Ext. Ka-16, Police Form 13
challan dead body Ext. Ka-17, letter to CMO
Ext. Ka-18, and specimen seal Ext. Ka-19.

9. Thereafter, the dead body was sent for
post mortem examination in the mortuary at
Moradabad where post mortem examination on
the cadaver of the deceased Khurshida Begum
was done by the doctor on 29.03.1987 at 12:30
p.m. wherein he noted the following ante
mortem injuries:

1. Contusion 4 cm x 3 cm on the left
side neck upper part and on cutting blackish
clotted blood present under the injury.

2. Contusion 4 1⁄2 cm x 3 cm on the
right side neck upper part and on cutting
blackish clotted blood present under the injury.

3. Contusion 6 cm x 6 cm on the
right side occipital region of head and on
cutting blackish clotted blood present under the
injury.

10. In the opinion of the doctor, cause of
death was due to asphyxia as a result of
throttling. This post mortem examination report
is Ext. Ka-20.

11.

In
the
meanwhile,
the
investigation continued. The Investigating
Officer in the process recorded statement of
various persons including the informant.
He also prepared site plan of the place of
occurrence Ext. Ka-21 and graveyard Ext.
Ka-23.

12. Since relevant papers pertaining to
the investigation and the post mortem
report were admitted to the defence itself,
therefore, no formal witnesses from the
3-5 All. Mohd. Ishaq & Ors. Vs. The State of U.P.
617
prosecution side was produced in proof of
the same, thus papers were marked in
exhibits. After doing the needful, the
Investigating Officer filed charge sheet
against the appellant Ext. Ka-22.

13. Pursuant thereto committal
proceeding took place and after compliance
with Section 207 Cr.P.C., the case was
committed to the court of Sessions from
where it was transferred to the IXAdditional Sessions Judge, Moradabad, for
conduction of trial and disposal of the case,
after numbering it as Sessions Trial No.411
of 1987 State Vs. Mohd. Ishaq and others.
Learned trial Judge heard the prosecution
and the appellants on point of charge and
was prima-facie satisfied with the case
against the appellants, accordingly, framed
charges under Sections 302/34, 201, 498A
I.P.C. and 3/4 of Dowry Prohibition Act.
Charges were read over and explained to
the appellants who abjured charges and
claimed to be tried.

14. In turn, the prosecution was
required to adduce its testimony in support
of the charge brought against the appellants
to prove their guilt, whereupon the
prosecution
produced
the
following
witnesses
whose
reference
is
being
sketched hereinbelow.

15. Mian Jan PW-1, Irshad Ahmad
PW-2,
Mohd.
Salim
PW-3,
Nasheer
Ahmad PW-4 and Laddan PW-5 are
witnesses of fact. We have already
discussed all the police papers and relevant
papers were admitted to the defence,
therefore, formal proof was dispensed with.

16. After that much, evidence for the
prosecution was closed and statement of
the appellants was recorded under Section
313 Cr.P.C. wherein they claimed to have
been falsely involved on account of enmity
in this case.

17. Except as above, no other
testimony, whatsoever, has been adduced
by the defence, therefore, evidence for the
defence was also closed and the case was
posted for arguments.

18.
The
learned
trial
Judge,
Moradabad, after appraisal of facts and
consideration of the merit of the case and
evaluating the evidence on record, returned
aforesaid
finding
of
conviction
and
awarded sentence vide impugned judgment
and order dated 24.09.1991.

19. Hence, this appeal.

20. At the outset, learned counsel for
the appellants has submitted that in this
case, all the ingredients of Section 304B
are not applicable against the present
surviving
appellants
namely
Mohd.
Mushtaq and Mohd. Asghar, for the
specific
reason
that
their
role
for
controlling the working of the entire family
in the shape of dominance was insignificant
in the presence of the mother-in-law,
father-in-law and husband of the deceased
Khurshida Begum. There is not a single
whisper and iota of evidence or any
consistent attendant circumstance which
may also allude to inference that both the
surviving appellants voluntarily and tacitly
ever indulged in any act of demand of
dowry from the deceased, informant or the
parents of the deceased. To say that the
present appellants, both brothers of the
husband of the deceased had connived with
the rest of the family members; the fatherin-law, the mother-in-law and the husband
of the deceased and they were persistently
sticking to the demand of dowry, not only
this but also the factum of cruelty being
618 INDIAN LAW REPORTS ALLAHABAD SERIES
perpetrated by the surviving appellants,
cannot
be
accepted
to
have
been
satisfactorily proved / established by the
prosecution as was required of it.

21. Once the fact of perpetration of
cruelty
is
missing
against
particular
appellants then conjectures and surmises
alone would not work to fill in the gap
created by the prosecution at a stage when
specific role was imputed to have been
played in the demand of dowry and
perpetration of cruelty against the only
accused the father-in-law, the mother-inlaw and the husband. Nothing such or
specific imputed on the point to the present
appellants.

22. Two witnesses of fact namely
Mian Jan PW-1 and Irshad Ahmad PW-2,
father and brother of the deceased have
been examined before the trial court, they
have not spelled even a single word about
any
specific
role
in
the
shape
of
perpetration of cruelty or demand of dowry
being made at their instance but the
surviving appellants were married at the
time of the incident and they had separate
living with their family and they would not
be beneficiary of the transaction and were
not directly interested in raising any
demand on account their disinterestedness
in any dowry what to about its demand.
Offence under the provisions of dowry
death as such is not made out. There was
no
point
in
concealing
or
causing
disappearance of the evidence regarding
commission of the dowry death as such no
offence under Section 201 I.P.C. is made
out either. On that point also, finding of
conviction is based on conjectures and
erroneous
analysis
of
fact
and
not
supported by any cogent material available
on record because there is no specification
against the present two surviving appellants
that they ever played any particular role.
Allegations against them are vague and of
trivial nature.

23. Once the case does not fall within
four corners of Section 304B I.P.C. and the
point of perpetration of cruelty and dowry
demand soon before the occurrence by and
on behalf of the accused being missing, the
essential ingredient (of Section 304B
I.P.C.) is virtually not existing since
beginning against the present surviving
appellants. May be that it is found to have
been working for the other accused against
whom specific role has emerged in the
testimony of witnesses but it is not so
against the present two surviving appellants
who are none other than the two brothers of
the husband of the deceased.

24. It is tendency in the cases
pertaining to dowry death that the entire
family is roped in. The court is required to
act cautiously; be circumspect about false
involvement of the accused. It is a case of
false and vague allegations against the
present two surviving appellants. There is
virtually
nothing
against
the
present
surviving appellants bringing their case
under Sections 498A, 304B, 201 I.P.C. and
3/4 Dowry Prohibition Act.

25. Learned trial Judge failed to take
stock of the aforesaid factual as well as
legal aspects of this case which were very
much apparent to it and erroneously
recorded conviction against the appellants
in casual manner, which finding is not
based
on
material
on
record.
The
prosecution has miserably failed to prove
its case beyond all reasonable doubt.

26. Per contra, Sri Krishna Pahal,
learned A.A.G. for the State has has
submitted that the trial court has rightly
3-5 All. Mohd. Ishaq & Ors. Vs. The State of U.P.
619
acted on the evidence available before it
and has rightly applied the principles of the
presumption as envisaged under Section
113B of the Indian Evidence Act, 1872.
The incident took place within seven years
of the marriage of the deceased and the
death in question as per post mortem
examination
report
is
unnatural
and
testimony of the prosecution witnesses is
replete with fact that the in-laws side of the
deceased
demanded
dowry,
thus
perpetrated cruelty upon the deceased
Khurshida Begum. Merely because no
specification has been made regarding
demand of dowry and perpetration of
cruelty, insofar as against the present two
surviving appellants are concerned, that
would not alone exonerate them of charges
inter-alia under Section 304B I.P.C.

27. It is the admitted position that the
post mortem examination report has been
admitted to the defence and they cannot
question the nature of the ante mortem
injuries caused on the body of the deceased
Khurshida Begum. Once it being so, the
burden of proof bounced back to the
appellants to come out specifically as to
how it was caused on the body of the
deceased. It is not proved and cannot be
accepted under circumstances that the
present appellants were residing separately
at the time of occurrence. The charge sheet
was rightly filed against the present
appellants and all the ingredients of
perpetration
of
cruelty
are
equally
applicable to all the accused under
prevailing facts and circumstances of the
case. The trial court was justified in
recording conviction and passing sentence
against them.

28. We have also considered the
above submissions pros and cons made by
both the sides.

29. In the light of rival submissions
and the claim of the appellants and the
prosecution, the moot point that arises for
adjudication of this appeal relates to fact
whether the testimony of the prosecution
witnesses of fact is innocuous and the
charges framed against the appellants have
been proved beyond reasonable doubt ?

30. We have carefully scrutinized the
record and the testimony of the aforesaid
two witnesses of fact namely PW-1 and
PW-2 and have also scanned testimony of
PW-3, PW-4 and PW-5. We would not
indulge unnecessarily in roving scrutiny
and exhaustive interpretation of facts as
involved in this case. However, we can
unhesitatingly observe that all the above
five prosecution witnesses, if taken to be
true, and normal construction is raised
about the very import of their testimony on
the point of demand of dowry then it is
found to be not specific against the present
surviving appellants. Whatever, we come
across, is fact that mother-in-law, father-inlaw in company with the husband of the
deceased played vital role in demanding of
dowry and perpetration of cruelty on the
deceased but the present appellants have
not been whispered by the prosecution
witnesses about any specific role being
played in the commission of the offence.
The involvement of the appellants cannot
be said to be either direct or indirect in this
case. Things are, on the contrary, vague
and general insofar as the role of the two
appellants is concerned.

31. It has come in the testimony of the
prosecution witnesses that all the brothers
of the husband of the deceased have their
own separate living though in the same
house. It means that the control and the
dominance over the family of the deceased
was very much confined to her husband,
620 INDIAN LAW REPORTS ALLAHABAD SERIES
mother-in-law and father-in-law and it did
not travel beyond it. Now this being
accepted and proved position, how can it be
said that the present appellants ever
exercised influence upon the deceased in
raising demand of dowry. Mere conjectures
and guess can be made at this stage that
they might have sided with the aforesaid
mother-in-law,
father-in-law
and
the
husband of the deceased but that conjecture
cannot be accepted to be the established
position, which was required to be proved
as such under the relevant provisions of the
Indian Evidence Act. That being so, any
sort of presumption for committing dowry
death as the accused as envisaged under
Section 113B Indian Evidence Act, 1872
would be derogatory to the principles
contained under the Indian Evidence Act
itself.

32. Therefore, the approach adopted
by the trial court is not based on material
on record. To raise such presumption under
Section 113B of the Indian Evidence Act
against the appellants is not justified. Rest
of the ingredients may be present but the
fact that soon before her death, the
deceased was subjected to cruelty is not
specifically proved against the present
appellants, for the reason that in the same
house, they were residing in different
portion and that being established position
(emerging in testimony), how can it be said
that the present appellants also colluded
and connived with the other family
members in view of fact that they were not
beneficiary of the outcome of dowry
(demand). The circumstances are cogent
and
conspicuous.
They
speak
for
themselves and need no explanation as
such. We unequivocally are of the view
that the trial court did not approach
cautiously and properly to this virtual
aspect
abundantly
supported
position
supported by evidence on record and
wrongly recorded finding of conviction
under Sections 304B, 201, 498A I.P.C. and
3/4 Dowry Prohibition Act against the two
surviving appellants which is not justified.

33. It is settled principle of criminal
jurisprudence that in cases where evidence
and
circumstances
when
weighed
substantially and taken cumulatively raised
strong suspicion about the manner and style
of the occurrence that it was so caused by
the accused-appellants, then benefit of
doubt would be the only reasonable
outcome of judicial scrutiny and this
benefit of doubt always works in favour of
the accused (appellants).

34. The learned trial court could not
appraise substantive facts and testimony of
this
case
in
right
perspective
and
considered things from narrow angle
without properly scrutinizing the same on
its entirety and intrinsic potency, instead it
read testimony and circumstances only on
its face value, whereas, proper scrutiny of
fact vis a vis testimony on record would
have brought truth on the surface. It is very
easy to consider and examine testimony
recorded in examination in chief, whereas,
the Court has to cautiously contemplate on
the entire testimony as a whole and
particularly as emerging from the cross
examination and then to proceed to record
finding on merit for arriving at just
conclusion.

35. We may record our satisfaction
that arguments extended on behalf of the
present appellants carry force and the same
are
approved
and
sustained
by
us.
Consequently we hold in unambiguous
term that the prosecution has not been able
to prove its case beyond reasonable doubt
against the two surviving appellants namely
3-5 All. Rakesh & Ors. Vs. State of U.P.
621
Mohd. Mushtaq and Mohd. Asghar. Thus
charges framed against them become
doubtful and they are entitled to the benefit
of doubt.

36. In the wake of above discussion,
we may sum up that the finding of
conviction recorded by the trial court is on
the face erroneous and perverse and the
same cannot be sustained in the eye of law.
Therefore, the judgment and order of
conviction and sentence dated 24.09.1991
passed by Special Judge, Moradabad, in
Session Trial No.411 of 1987, State of U.P.
Vs. Mohd. Ishaq and others, arising out of
Case Crime No.82 of 1987, under Sections
304B, 201, 498A I.P.C. and Section 3/4 of
Dowry Prohibition Act, Police Station-
Behjoi, District- Moradabad, is hereby set
aside. Accused-appellants are acquitted of
all charges as above. Accordingly, the
instant appeal is allowed.

37. In this case, the accusedappellants Mohd. Mushtaq and Mohd.
Asghar are already on bail. They need not
surrender in this case. Their bail bonds
cancelled
and
sureties
discharged.
However, they shall furnish surety bonds in
compliance with Section 437A Cr.P.C.

38. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action.
----------
(2020)03-05ILR A621
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No. 2117 of 2002
Rakesh & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A.B.L. Gour, Sri Saurabh Gaur

Counsel for the Opposite Party:
A.G.A.

Criminal
law-
Indian
Penal
Code
-
Sections 147, 504, 506(2), 308/149 -
Appeal against conviction.

Held :- Ingredients of Section 307 IPCFirearm injury - Not found on vital part of body
of injured - Injury not caused with intention to
kill - Hence not liable for punishment under
section 307 IPC. Trial Court judgment modified
to conviction under Section 324 I.P.C.

Appeal partly allowed. (E-2)

List of Cases Cited:-

1. St. of H.P. Vs. Pardeep Kumar & ors., (2018)
13 SCC 808.

2. Bhajan Singh @ Harbhajan Singh & ors. Vs.
St.of Har., 2011 (4) Supreme 639.

3.
Sadayappan
@
Ganesan
Vs.
State,
represented by Inspector of Police, 2019 SCC
OnLine SC 610.

(Hon'ble Ali Zamin, J.)

1. Heard Sri A.B.L. Gaur, learned
Senior Counsel assisted by Sri Saurabh
Gaur for the appellants and the learned
A.G.A. for the State.

2. This appeal has been preferred
being aggrieved from the judgement and
order dated 22.05.2002 passed in Session
Trial No.62 of 1998 (State vs. Rakesh and
others) arising out of Case Crime No.2 of
1997, under Sections 323, 324, 307 read